Fuller v CC Wagga Wagga

[2001] HCATrans 328

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S247 of 1999

B e t w e e n -

DAWN (AKA DEE) FULLER

Applicant

and

THE COUNCIL OF THE CITY OF WAGGA WAGGA

Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 SEPTEMBER 2001 AT 12.34 PM

Copyright in the High Court of Australia

MR G. O’L. REYNOLDS, SC:   If the Court please, I appear with my learned friend, MR M.J. LEEMING, for the applicant.  (instructed by Denniston & Day)

MR D.L. WILLIAMS:   If the Court please, I appear for the respondent.  (instructed by Riley Gray‑Spencer)

GLEESON CJ:   Mr Reynolds, we have had a look at the papers in this matter.  The constitution of the Bench is not necessarily ideal from your point of view, but then, on the other hand, we can act with good grace as well as anybody else in appropriate circumstances.

MR REYNOLDS:   We have no application, your Honour.

GLEESON CJ:   From another direction than from right here you seem to have a following breeze, on the other hand, the idea that this litigation should go back for a retrial, having regard to the amounts of money involved, is a bit unfortunate, too, is it not?

MR REYNOLDS:   We certainly do not suggest that.

GLEESON CJ:   It is a wonder the parties have not been able to resolve this matter, in the light of the decision of this Court in Brodie.

MR REYNOLDS:   Well, your Honour, we do not understand that either, but the ‑ ‑ ‑

GLEESON CJ:   We will hear what your opponent has to say, Mr Reynolds.  Mr Williams.

MR WILLIAMS   Your Honour, we accept, of course, that the basis upon which the Court of Appeal acted has now gone.  There were a number of other matters that were to be addressed in the Court of Appeal.  They have not yet been addressed.

GLEESON CJ:   As Justice Windeyer once said in a case, “The voices of infallibility have spoken by a narrow majority”.

MR WILLIAMS   Yes, your Honour.  We were on the wrong side of it.

GLEESON CJ:   Yes.  There has to a grant of special leave, does there not?

MR WILLIAMS   There does and we do not say anything about that.  The real issue is then:  where is the appropriate venue for the agitation of anything else?

GLEESON CJ:   Yes.  Now, once there is a grant of special leave, it is not really in your joint contemplation, is it, that the High Court would then assemble to hear an appeal in this matter?

MR WILLIAMS   No, it is not, your Honour, and we would accept that it is appropriate for the matter to be remitted to the Court of Appeal to deal with the balance of ‑ ‑ ‑

GLEESON CJ:   Have we the power today to grant special leave to appeal, to allow the appeal and to remit the matter to the Court of Appeal?

MR REYNOLDS:   Your Honours, that is what the Court did in Brodie.

GLEESON CJ:   It sounds, as they say, like the way to go.

MR REYNOLDS:   Yes.  Your Honours, I should perhaps have said before that in the end the only dispute between my friend and I, given that my friend wants to agitate certain other arguments which the Court of Appeal did not deal with, is the question of the costs in this Court.  What we have done is we have formulated some short minutes of order.  The topmost piece of paper are the orders which my client says should be made.

HAYNE J:   Why should not the costs of coming here be the costs in the proceeding, generally, whether in the costs of the appeal or the proceedings generally?

MR REYNOLDS:   Your Honour, because there is a majority decision of this Court which is precisely on all fours with this case, namely, Brodie, wherein the Court ordered that the respondent to the appeal pay the costs of the appeal.

GLEESON CJ:   That is not quite right.  It might ultimately be determined that the case that is on all fours or close to this case is not Brodie but Ghantous.  This is a tripping on a footpath case, is it not?

MR REYNOLDS:   Not at all, your Honour.  I mean, if necessary, I can go to the evidence on that.

GLEESON CJ:   Well, do not bother us.

MR REYNOLDS:   This is a situation where there is a large pipe and it has been cut in half.

GLEESON CJ:   A pipe, yes.

MR REYNOLDS:   I mean, really, that is a specious submission that is made by my friend.  But, as in Brodie, if there are arguments ‑ ‑ ‑

GLEESON CJ:   The difference between these two forms of short minutes of order ‑ ‑ ‑

MR REYNOLDS:   Are orders 2 and 5 because my friend, on the second page, simply wants the appeal to be allowed and we have italicised in order 5 the insertion which he would like.  We say the orders made in the Brodie Case were correct.  The only distinction between this case and that one is that my friend has had a massive cost saving, namely, that he did not have to go down to Canberra and prepare for an appeal down there and ‑ ‑ ‑

GLEESON CJ:   I forget the history of this matter.  Was this matter in the list once before and stood over?

MR REYNOLDS:   Yes, it was, pending the decisions in Brodie and Ghantous.

GLEESON CJ:   Did this matter come into this list before special leave was granted in ‑ ‑ ‑

MR REYNOLDS:   After special leave was granted but before the appeal was heard.

HAYNE J:   What is against the costs of the proceedings in this Court turning on the outcome of the litigation as a whole?

MR REYNOLDS:   Your Honour, we would naturally put the question slightly differently, that ‑ ‑ ‑

HAYNE J:   I understand there are certain economic reasons against it, but what is the legal reason against it?

MR REYNOLDS:   That costs normally follow the event.

GLEESON CJ:   Yes, but if you ultimately fail in the Court of Appeal on what I might describe as the merits, then that will have shown that the judgment against you was right, although for the wrong reasons.

MR REYNOLDS:   Your Honour, I accept that but that argument obviously did not appeal to the majority Justices of this Court in Brodie because the situation that obtained there is precisely the same situation as

operates here, namely, that the respondent to the appeal foreshadowed a whole lot of arguments they wanted to agitate in the Court of Appeal.  Notwithstanding that, the Court of Appeal ordered that the respondent pay the costs.

GLEESON CJ:   You say that Brodie, itself, stands as authority for the proper way to deal with costs in a situation like this?

MR REYNOLDS:   Not as a proposition of law, your Honour, but it is indistinguishable, on the facts, from the situation that obtains here, that is all.

GLEESON CJ:   I follow that.We will see what you have to say about that, Mr Williams.

MR WILLIAMS   Your Honour, the just result is that the costs abide the ultimate outcome.  So far as Brodie is concerned, obviously that took a different course because the whole appeal had to be dealt with.  It was apparently determined in the course of that that it was – I am not sure whether there was a notice of contention on it – there did not appear to be from the judgment.  But the ultimate outcome was that the appeal was allowed after debate about whether or not that should occur and the matter then remitted here.  We would consent now, in light of what has occurred, to that occurring.

The position is that we, through no fault of our own, find ourselves in a position where it was run on a certain basis in the Court of Appeal and your Honour made some comments in the Ghantous Case about that aspect.  If there had been no well‑entrenched rules such as the one that we previously had in our favour the Court of Appeal would have dealt with the other issues as well.  It is only because of the removal of that principle that we are in this situation.  Ultimately, the costs should follow the event in the broader sense of what is to happen in the Court of Appeal.

GLEESON CJ:   Thank you.  Mr Reynolds, anything ‑ ‑ ‑

MR REYNOLDS:   I have no reply.

GLEESON CJ:   We will make the following orders:

1.   Application for special leave to appeal granted.

2.   Appeal treated as instituted and heard instanter and allowed.

3.   Set aside the orders made by the New South Wales Court of Appeal on 22 November 1999.

4.   Remit the matter to the New South Wales Court of Appeal for determination of the remaining issues on appeal.

5.   The costs of the appeal to this Court, the appeal to the New South Wales Court of Appeal and the trial to abide the outcome of that appeal.

We will adjourn now and resume at 2.15.

AT 12.44 PM THE MATTER WAS CONCLUDED